The Consumer Protection Act

This year there’ll be no April Fool’s Day jokes on 1st April when the Consumer Protection Act, 2008 (“the CPA”) comes into force, as we could all face major losses if we are not prepared and protected.

The CPA establishes a new legal framework, which will ultimately develop the South African consumer market into something which is both strictly regulated and “consumer – centric”.

The following is a brief explanation of certain sections of the CPA which may directly impact upon your business, as prepared by Craig Campbell, the group legal counsel for the Melbro Group of Companies:

Application

  • The CPA applies to every sale or service involving consumers (as defined).
  • It will also have a bearing on advertising and marketing efforts in general.

Fundamental Consumer Rights

Consumer’s right to choose

  • The consumer may not be held responsible for any accidental damage to goods which are on display, or be forced into buying a product pursuant to an in-store breakage.
  • However, this will not be the case if it is clear that the consumer damaged the displayed goods on purpose, or was grossly negligent.
  • The onus is on suppliers to make certain that product displays are set up in safe places, out of harm’s way.

Right to disclosure and information

  • Any information which is displayed on products or on marketing/advertising materials must be in a plain and understandable language.
  • Goods may not be displayed for sale on shelves without displaying a price in relation to those goods
  • If more than one price is displayed, the consumer has the right to pay the lower price.
  • Trade descriptions or product labels must not mislead the consumer in any way.

Right to fair and responsible marketing

Offers

  • Any document setting out any promotional offer (as defined) must clearly state the nature of the prize or reward (or discount) being offered, the goods to which the offer relates and the steps required by a consumer in order to accept the offer or receive the benefit.

Competitions

  • The consumer must not be compelled to pay any consideration for the right to enter into the competition (other than the reasonable costs of posting or transmitting an entry form).
  • Competition rules must be prepared before the beginning of the promotion and the rules must be available to the National Consumer Commission and the public at no cost.
  • These rules must be retained on file for an indefinite period.

Right to fair value, good quality and safety

  • A consumer has a right to goods which are reasonably suited for the purposes for which they are generally intended.
  • The goods must be free from any defects.
  • The goods must be useable and durable for a reasonable period of time, having regard to the use to which they would normally be put and all the surrounding circumstances of their supply.
  • The goods must comply with any applicable standard set under the Standards Act, 1993, or any other public regulation
  • In determining whether an item satisfies one of the above criteria, all of the circumstances of the supply of those goods must be considered, including:
    • The manner in which, and the purposes for which, the goods were marketed, packaged and displayed, and the use of any trade description, mark, any instruction for, or warnings with respect to the use of the goods.
  • It is irrelevant whether a product failure or defect was patent or latent, or whether said failure or defect could have been detected by a consumer before the delivery of goods.
  • Hazardous (dangerous goods) must be adequately labelled with a warning notice, in plain language and/or with a diagram.
  • The National Consumer Commission may order a recall of products if steps (as required by an applicable industry code) have not been taken to initiate a recall.
  • Suppliers are liable for harm caused by:
    • supplying an unsafe product;
    • any product failure/hazard/defect; or
    • inadequate instructions or warnings pertaining to any hazard arising from or associated with the use of any goods.

Returns

  • If the product concerned is defective, the consumer may demand a cash refund, provided that not more than 6 months has passed since date of sale.
  • Please note that this does not apply to items which are consumable in nature or which have been abused or used improperly (contrary to instructions).

Please do not hesitate to contact us, should you have any queries in this regard.

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